Republic v Nasor Suleiman Mbaruk [2015] KEHC 6952 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL CASE NO. 29 OF 2014

REPUBLIC …......................................... PROSECUTOR

VS.

NASOR SULEIMAN MBARUK …................. ACCUSED

RULING

[1].    The applicant filed the motion herein on  29th December 2014 under the high court vacation rules and under section  123 and 124 of  the Criminal Procedure Code.  He applied that the matter  be  certified urgent and  be heard on  priority basis during the vacation.  He applies that this court do grant him  bail/bond pending the hearing and determination of  this trial.  The applicant states that  he is  sickly and requires  specialized treatment outside the  confines of the  prison.  He  states  that in  a  previous bond application Tuiyot J denied him bail but gave  him conditionalities for reviewing his  bond application.  He avers through his counsel Mr. Ashioya that he has  complied with  these conditions in that

He is a manager of Mombasa highway transport and that he has attached a letter from his employer.

He says he is married to  a Kenyan wife who has attached her Kenyan passport and  has a letter to that effect from the Imam.

.  He attached birth certificates of his children.

That he also attached a letter from the chief Kisauni – Mombasa.

He also provided  a letter from the Imam showing that he is a worshiper in the local  mosque.

A  letter from his brother and a neighbour.

That he has property in Kenya  charged to Gulf bank.

[2].    He argues that the accused  is suffering from a dislocated vertebrae disk  sustained during his arrest and he needs to be  checked and treated outside Busia since no services  like those are available in the District Hospital there.  Otherwise he states that there is a  real risk of getting  paralyzed.  He argues  that denying bond on the allegation of  a possible flight to outside the  jurisdiction   of the court is unfair since that issue was  dealt with  by Tuiyot J, who  found  no  basis on that issue and that therefore, that issue is res judicata. He told the court that he is willing to provide  substantive sureties and that he is prepared to report to the office of the DCIO Nyali Mombasa as may be ordered by the court.  Finally that  he is willing not  to  travel outside the jurisdiction of the court.  And that he will  only do  so with  the courts permission.

[3].    Mr. Obiri learned state counsel  apposed  the application for bail.  He  relied on the affidavit of Grace Makuphe the DCIO North Teso District. Her major opposition to bail/bond being granted to the accused is the possibility of  flight by the accused.  This was  also the  reason alluded to by  corporal Chirchir.  She argued that a  real possibility of flight  by the accused to outside the  courts jurisdiction exists.  It was argued by  the state counsel that  since the charge herein is  murder which is a capital offence, whose  punishment is death and  the possibility of  flight is real. He argued that  merely meeting the conditionallities  set by Tuiyot J was not enough.  He  further argued that if the court is willing to  give the accused bond/bail the conditions for bail  must be very stringent. He suggested Kenyan surerities with proven worth of Kshs. 10 million, supported by  real property and/or bank guarantees by Kenyan sureties of   a similar amount.  Finally that  the accused should  report  tri-weekly in  the office of the OCPD or the nearest police station.  In this case identified as Nyali police station.  That the accused should not leave the jurisdiction of the court  during the pendency of this case and that if he  does so, the prosecution  should be allowed  to  move the court to cancel the bond application.

[4].    In  dealing with the  question of  whether the accused  was a flight risk, the Busia High court was not  convinced that the accused was a  flight risk.   However it dealt at length  with the fact that the accused is charged with murder.  That the accused was  a  constant traveller to  outside the courts jurisdiction, that he  had no passport and uses temporary  travel permit. The court  stated that the accused  therefore bears a responsibility to assure the  court that he will not use his ability  to travel outside the country to put  himself  beyond the reach of  trial court.  And that  is how the conditionalities came  about.  He  now states that he has  met the conditionalities as set out by Tuiyot J.

[5].    The state counsel argues that  conditionalities are not enough.  That the court should put stiffer conditions this being a murder case.  Having  looked at the circumstances of the case, and  taking into account that   bail is the right of every accused person under the  Constitution, and taking into account that the accused has no passport, that  he  frequently travels outside the country  on  temporary permits, coupled with the  fact that he is charged with murder, I am persuaded  that  stringent  conditions must be  imposed on the accused to ensure  he  does not   jump bail.

[6].    I therefore order that the accused herein will be  released and be admitted to bail on the  following terms;

(a).    He shall be released on his own personal bond of Kshs.  10,000,000 million.

(b).    He shall also have two Kenyan  surerities of a similar amount each who shall prove  that  worth with OR,   who will have  bank  guarantees of Kshs. 10  million  each.  (to secure  the  attendance of the accused over the  period of the case).

(c).     The accused shall not leave the jurisdiction of the court (i.e  Republic of Kenya) at any   time  during the pendency of  this case without leave of the  court sought and obtained.

(d).    The accused shall report to Nyali police station every two weeks save only the period he shall be  hospitalized for his  current complaints

(e).     The prosecution shall have  leave to apply for cancellation of these bond terms if any  condition herein is breached.

IT IS SO ORDERED.

S. MUKUNYA

JUDGE

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